Gibbs v. State

Decision Date24 June 1898
Citation46 S.W. 645
PartiesGIBBS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Knox county court; C. Hood, Judge.

W. H. Gibbs was convicted for making, and permitting to remain standing, a fence on land not his own, without the written permission of the owner, and appeals. Reversed.

J. H. Glasgow, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted for making, and permitting to remain standing, a fence, on land not his own, without the written permission of the owner, and appeals.

The indictment is drawn under article 509 of the Penal Code of 1895, and the charging part is in the following language: That "W. H. Gibbs did then and there unlawfully and knowingly make, and permit to remain standing, a fence on and around the land of J. A. Sherwood, to wit, the east one-half of section No. 20, certificate No. 145, block 2, Dallas & Wichita Railroad Company, situated in Knox county, Texas, without the written consent of the said J. A. Sherwood, duly acknowledged by him," etc. The act in question is in the following terms: "If any person or corporation shall knowingly make or permit to remain standing any fence on or around the land of another, or the public, * * * without the written consent of the owner thereof duly acknowledged, * * * he shall be deemed guilty of a misdemeanor, and upon conviction thereof fined in any sum not less than fifty cents nor more than one dollar per acre per month for each month so inclosed, or fined and imprisoned in the county jail for any period not over two years." In a subsequent portion of said act, in the same section, is the following: "Half of all fines collected under the provisions of this act shall be paid to the person or persons informing on the person or corporation who shall unlawfully inclose any land: provided that each three months said land is so inclosed shall constitute a separate offense."

The first proposition presented is whether or not a prosecution under this statute can be maintained under an indictment; it being insisted, under the statute, that, inasmuch as a part of the fine goes to the informer, it can only be prosecuted in the name of the informer, as a qui tam action. We are referred to the authorities in this state on the subject. Two cases appear to hold that the prosecution can only be maintained in the name of the informer. These are State v. Garcia, 38 Tex. 543, and Rawlings v. State, 39 Tex. 200,—both decided by the supreme court during the reconstruction period. In support of these opinions no authority whatever is cited. The question does not seem to have been discussed. The rule, however, is held in those cases, as stated before, that the prosecution of such suits must be conducted by the informer. The attorney general, in his brief in the case of Tarde v. Benseman, 31 Tex. 277, cites authorities in support of the proposition. We have consulted these authorities, and they do not support the proposition. The authorities cited are to the effect that the informer can prosecute or institute the suits, as the case may be. This is not denied, the issue being whether in all cases the prosecution must be conducted by the informer. We are also cited to the case of Doss v. State, 6 Tex. 433. This case has nothing whatever to do with the question at issue. When we refer to the authorities upon this subject, we find that, where a statute does not in terms define in whose name the suit shall be conducted for the recovery of any penalty for its violation, the suit must be in the name of the people or state. See People v. Young, 72 Ill. 411; Caroon v. Rogers, 51 N. C. 240. Where a statute prohibits an act, under a penalty, and one moiety goes to the public and the other to the informer, the state may prosecute for the whole, unless the informer has commenced a qui tam action. See State v. Bishop, 7 Conn. 181; Com. v. Howard, 13 Mass. 222; Rex v. Hymen, 7 Term R....

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